Newsletter n° 9 – Business law
Summary
LEGISLATION
GENERAL CONDITIONS OF SALE
Decree of December 18
JURISPRUDENCE
… of November 18, 2014
Leasing: judicial liquidation does not preclude the finding of the prior acquisition of a resolutory clause
… of November 18, 2014
Clarification relating to the powers of the supervising judge
… of November 18, 2014
The surety may invoke the rejection of a guaranteed claim pronounced in the collective proceedings of his co-trustee.
… of November 4, 2014
The omission of a word in the commitment of a deposit
… of November 19, 2014
The mode of heating can be a contractual element
… of November 5, 2014
The absence of regularization of the charges makes without cause the provision calls on charges
LEGISLATION
Terms of Sales
The decree of December 18, 2014 relating to the information contained in the general conditions of sale in terms of legal warranty is taken for the application of article L.133-3 of the Consumer Code. This article provides that the general conditions of sale (CGV) of consumer contracts mention according to the methods fixed by decree: "the existence, the conditions of implementation and the content of the legal guarantee of conformity and the guarantee relating to defects of the thing sold, owed by the seller". Article 1 of the decree specifies that the GCS of consumer contracts must include: "the names and address of the seller guaranteeing the conformity of the goods to the contract, allowing the consumer to make a request under the legal guarantee of conformity provided for in Articles L. 211-4 and following of the Consumer Code or the guarantee against defects in the thing sold within the meaning of Articles 1641 and following of the Civil Code”. The GCS of consumer contracts must mention that the seller is liable for defects in the conformity of the goods with the contract under the conditions of article L. 211-4 and following of the consumer code and for hidden defects in the thing sold in the conditions provided for in articles 1641 and following of the Civil Code (Art. 2). The terms and conditions of consumer contracts must contain a box indicating to the consumer that, when acting as a legal guarantee of conformity, he:
- has a period of two years from the delivery of the property to act;
- can choose between repairing or replacing the good, subject to the cost conditions provided for in article L. 211-9 of the consumer code;
- is exempted from providing proof of the existence of the lack of conformity of the goods during the six months following the delivery of the goods.
This period is extended to twenty-four months from March 18, 2016, except for second-hand goods. This same box must recall that the legal guarantee of conformity applies independently of any commercial guarantee granted. Finally, it specifies that the consumer can decide to implement the guarantee against hidden defects of the thing sold within the meaning of article 1641 of the Civil Code and that in this case, he can choose between the cancellation of the sale or a reduction of the sale price in accordance with article 1644 of the civil code (Art. 3).
JURISPRUDENCE
Leasing: Judicial liquidation does not preclude the finding of the prior acquisition of a termination clause
Com. 18 November 2014 (n°13-23.997) F-PB
By an order of October 31, 2012, a judge in chambers noted the acquisition of the resolutory clause inserted in a real estate finance lease contract and ordered the lessee to pay a provision to be applied to the unpaid rents and fixed an indemnity of occupancy. The lessee appealed and was put into compulsory liquidation on January 15, 2013. The Court of Appeal rejected the request for a finding of the acquisition of the termination clause on the grounds that on the day of the opening of the liquidation, the acquisition of the resolutory clause had not been established by a decision that has become final.
The commercial chamber breaks the judgment. According to the Court of Cassation:
"Article L. 622-21 of the Commercial Code does not preclude the action for the purposes of establishing the resolution of a real estate leasing contract by application of a termination clause by operation of law which has produced its effects before the judgment opening the judicial liquidation of the lessee”.
This is a reminder of the regime applicable to contracts in general from which the regime applicable to commercial leases derogates.
The powers of the supervising judge
Com. 18 November 2014 (n°13-24.007) F-PB
Two veterinarians were ordered by a judge in chambers to pay the debtor a provision.
A judgment of May 27, 1999 overturned this decision and ordered the debtor to return the sum received. The debtor, having been placed in receivership on July 1, 1999, one of the creditors declared his claim for restitution. By order of January 18, 2000, the supervising judge found that proceedings were in progress, the debtor having in the meantime assigned the creditors for liability and damages before the trial judge.
On July 18, 2000, the court decided on the debtor's continuation plan and an irrevocable judgment of March 27, 2008 condemned the creditors to pay the debtor a certain amount in damages. The creditor requested the registration of his claim on the statement of claims.
The debtor having opposed it, the parties were summoned before the judge-commissioner. The Court of Appeal considers that the debtor is inadmissible to challenge the regularity of the declaration of claim and rejects his request that the registration of the claim on the statement of claims be limited.
According to the Court of Cassation, the judgment of the Court of Appeal is justified insofar as: "the order by which the judge-commissioner notes, even if wrongly, that a proceeding is in progress, withdraws it and renders inadmissible any new claim brought before him for the same claim.
The joint surety may rely on the rejection of the debt pronounced in favor of his co-trustee
Com. 18 November 2014 (n°13-23.976) F-PB
The Court of Cassation considers that "the joint surety may rely, once it is final, on the rejection of the guaranteed claim pronounced in the collective proceedings of his co-trustee, unless it is due to a personal cause at this one ". In this case, a company and two spouses, surety for a loan granted to the company had been placed in judicial liquidation. During the proceedings, the supervising judge irrevocably rejected the bank's claim against one of the spouses. Retaining the res judicata of this decision, the supervising judge rejected the claim against the other spouse.
Omission in the handwritten mention of the guarantee commitment
Com. 4 November 2014 (n° 13-24.706) F-PB
A guarantor assigned in execution of the commitment he has made, invokes the nullity of this commitment.
The Court of Appeal pronounced the commitment null and void on the grounds that the handwritten mention did not contain the word “interest” and did not reproduce exactly the mention required by article L. 341-2 of the Consumer Code.
According to the Court of Cassation, the only consequence of the omission is to limit the scope of the suretyship to the principal of the debt without affecting its validity. Consequently, the Court reverses the judgment of the Court of Appeal.
The heating method as a contractual element
3rd Civil. November 19, 2014 (n°12-27.061) FS-PB
The lessors of premises in which a butcher's business operated replaced the gas heating and hot water production system with an electrical system following the occurrence of a fire in the boiler duct.
The operator of the business sued the lessors for payment of the cost of installing a new gas boiler and for compensation for its overconsumption of electricity and its operating losses due to the work to be carried out. The Court of Appeal ordered the lessors to pay a certain amount for the cost of installing a boiler and the overconsumption of electricity. The Court of Cassation dismissed the appeal and pointed out that the Court of Appeal had demonstrated that the change in heating mode characterizes the loss of an advantage that the lessee held from the lease.
Consequences attached to the absence of regularization of charges
3rd Civil. November 5, 2014 (n°13-24.451) FS-PB
In this judgment, the Court of Cassation considers that "the absence of regularization of the charges under the conditions provided for in the commercial lease renders without cause the quarterly calls for provision to be made against the payment of charges". In this case, the lease signed between the parties provided that "the lessee, by appealing a quarterly and civil provision paid by the lessee with each term, will reimburse in proportion to the leased premises a set of charges set out and that at the closing of each financial year of charges, the amount of the provisions paid will be regularized according to the closing of the accounts of annual charges”.
